Saturday, October 02, 2010

The Tea Party Concept of the Constitution



Katy Abrams' famous "sleeping giant" speech begins at 5:38. I was initially confused by her comment that Sen. Specter had abandoned "the Constitution." I think Specter's baffled answer, about opposing illegal wiretaps and activist judges, also misses her point.

Jonah Goldberg in a recent column reported something that I suspect involves the same sort of confusion:
"I have been fascinated by (Delaware GOP Senate candidate) Christine O'Donnell's constitutional worldview ..." Slate magazine senior editor Dahlia Lithwick confessed. O'Donnell had said in a debate, "When I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional."

To which Lithwick, a former appellate law clerk, Stanford Law grad and widely cited expert on the Supreme Court, responded, "How weird is that, I thought. Isn't it a court's job to determine whether or not something is, in fact, constitutional? And isn't that sort of provided for in, well, the Constitution?"
(First of all, if I may be so pedantic, the Court's power of striking down unconstitutional legislation is not in the Constitution. It was seized by the Marshall court early on because to them it made logical sense, not because it is mentioned in that venerable old document. An expert on the Supreme Court not knowing this --
how weird is that?)

Anyway, this is what I think is actually going on here: When people like Ms. Abrams and Ms. O'Donnell talk about "the Constitution," they often don't mean the literal word of the law as contained in that piece of parchment, and they definitely aren't referring to current SC interpretation of it. What they really have in mind is the conception of government that originally lay behind the Constitution -- a smaller, smarter government. It was a government that cares enough about the people to avoid burying them in a crushing load of debt. (Note that the generation of the framers and the next generation of leaders actually reduced the public debt from a staggering $50 million -- that's in 1790 dollars, not 2010 ones -- to zero. They did so in part by selling off government assets. Hey, there's an idea!) When O'Donnell says she will use constitutionality as the main test of whether to vote for a law or not, I think the test she has in mind is that older conception of government, not whether it ought to be struck down by the Supremes.

As an academic myself, I prefer to speak more precisely and literally than this. When I say "the Constitution," I mean the actual constitution, not some vague "philosophy" behind it. But I see no harm is using the word in this short-hand, symbolic sort of way in the public forum, provided that people understand what it is actually supposed to mean. Otherwise, what these folks are saying will sound "weird" -- or plain stupid. It's not stupid at all -- Dahlia Lithwick's embarrassingly patronizing remarks notwithstanding.

Post a Comment